The Harper Government Attempts To Politicize The Courts

"I can tell you this," said a clearly irked Harper, who appointed Nadon last September after commissioning independent legal advice that approved of the choice.

"I think if people thought that the prime minister, other ministers of the government, were consulting judges before them or — even worse — consulting judges on cases that might come before them, before the judges themselves had the opportunity to hear the appropriate evidence, I think the entire opposition, entire media and entire legal community would be outraged," he said.

"So I do not think that's the appropriate way to go."

Let us take a close look at Harper's statements here. First, he is implying a similarity between a case that is before the courts and the deliberations of parliament with respect to making an appointment. There is no such similarity, and Harper is lying to Canadians when he implies it.

An attempt on the part of a politician to lobby a judge regarding a case before the courts except as a witness before the court is clearly an attempt to confound the process of justice. (This same principle applies to all participants in a litigation) There is a very good reason for this, and that is to assure the public as a whole that justice is not only seen to be done, but that it is done independently of the influence of politics, wealth and other factors. Harper is quite correct to say that had it come out that his office had lobbied the justices of the court with respect to a case before the court that the public would be outraged.

Appointments to the court, are done by parliament. Parliament is a public body - it is responsible to the public, and its actions are subject to public scrutiny. It acts on behalf of the public, and theoretically, in the public interest. The proceedings of the elected bodies of parliament are inherently public through the publication of the Hansards, as well as records of committee proceedings.

This makes an appointment of a justice to the Supreme Court just as much a public proceeding as a debate over a piece of legislation. Further, there is an existing process where in fact the committee is obliged to consult with the justices currently sitting on the court when appointing a new justice.

McLachlin spoke to Harper "as a courtesy" last April to give him the retirement letter of justice Morris Fish, said the statement.

She met with the parliamentary vetting committee on July 29 "as part of the usual process," then contacted Justice Minister Peter MacKay and the Prime Minister's Office on July 31 "to flag a potential issue regarding the eligibility of a judge of the federal courts to fill a Quebec seat on the Supreme Court."

McLachlin's office said it contacted the PMO to make "preliminary inquiries" about setting up a call or meeting with Harper on the matter, "but ultimately the chief justice decided not to pursue a call or meeting."

"Given the potential impact on the court, I wished to ensure that the government was aware of the eligibility issue," McLachlin said in her statement.

"At no time did I express any opinion as to the merits of the eligibility issue. It is customary for chief justices to be consulted during the appointment process and there is nothing inappropriate in raising a potential issue affecting a future appointment."

Let's take a close look at the Chief Justice's comments as well. First, she met with the committee as part of the standard process. So far, nothing abnormal or unusual here. Then a couple of days later, she contacts the Justice Minister to raise a flag over the eligibility of Marc Nadon. Raising a flag over a matter of this nature is perfectly legitimate, and I cannot imagine how this constitutes an unreasonable action on the part of Justice McLachlin.

In fact, what she is doing in raising the issue is warning the government that they could be creating a serious political landmine for themselves should they proceed with Marc Nadon as an appointee. Had the government actually heeded her warning and proceeded with a different candidate, they would have saved themselves a public embarrassment.

Which brings me to Marc Nadon's appointment in the first place. Outside of being apparently ideologically compatible with Mr. Harper, there is little or nothing about Mr. Nadon that makes him one of Canada's noteworthy legal professionals. So, one might imagine that a lot of people would be wondering about why he was even a candidate outside of Harper's desire to push the court in a particular political direction.

That writer, Tom Flanagan, now is back with a forthcoming book, Persona Non Grata: The Death of Free Speech in the Internet Age, that speaks of Mr. Harper in “Nixonian” terms, as a man who “believes in playing politics right up to the edge of the rules, which inevitably means some team members will step across ethical or legal lines in their desire to win for the Boss.”

Anger Harper, or thwart his political objectives, and he comes out on the attack. He's done it before, going as far as to fire Linda Keen for failing to obey his politically motivated desire to restart a reactor that was unsafe. I'm sure that had he dared, he would have sacked Parliamentary Budget Officer Kevin Page long ago, except the political price of firing him would have been exceptionally damaging to Harper's political ambitions.

Getting into a spat with the Supreme Court justices simply reinforces that this is a thin-skinned politician who fails to respect the checks and balances that are central to this country's constitution.